Karnataka High Court
Narayanamma vs D V Narayanaswamy on 9 November, 2020
Crl.R.P.No.1018/2011
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION No.1018/2011
BETWEEN:
NARAYANAMMA
W/O LATE GURAPPA
AGED ABOUT 80 YEARS
R/AT BUDADERU VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT ...PETITIONER
(BY SRI HEMANTH KUMAR D, ADVOCATE FOR
M/S.PRAMILA ASSOCIATES)
AND:
1. D.V.NARAYANASWAMY
S/O VENKATESHAPPA
AGED ABOUT 40 YEARS
R/AT DODDAGANAHALLI VILLAGE
DEVARAYASAMUDRA POST
MULABAGAL TALUK
2. R.SHYAM SUNDAR REDDY
S/O REDDAYAPPA
3. SRIRAMAPPA
MAJOR, SECRETARY, MILK DIARY
R2 & R3 ARE R/AT BUDADERU VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT ...RESPONDENTS
(BY SRI H.C.SHIVARAMU, ADVOCATE FOR R1;
SRI PRASHANTH. P.N. ADVOCATE FOR R3;
R2 SERVED AND UNREPRESENTED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 CR.P.C. PRAYING TO SET ASIDE THE ORDER
Crl.R.P.No.1018/2011
2
DATED 13.09.2011 PASSED BY THE COURT OF THE PRINCIPAL
CIVIL JUDGE (JUNIOR DIVISION) AND JMFC AT MULBAGAL IN
C.C.NO.62/2009 ON THE APPLICATION FILED BY THE
PETITIONER UNDER SECTION 84 OF CR.P.C. SEEKING TO
WITHDRAW THE ORDER OF ISSUING ATTACHMENT WARRANT
HOLDING THE PROPERTY AUCTION IN SURVEY NO.4/P1 OF
1/3RD SHARE.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE MADE THE FOLLOWING:
ORDER
"Whether attachment of 1/3rd share in the property bearing Survey No.4/P1 measuring 3.00 acres situated at Budaderu Village, Byrakur Hobli, Mulbagal Taluk by the trial Court suffers illegality, impropriety or incorrectness"? is the question involved in this case.
2. Respondent No.1 D.V.Narayanaswamy sought to prosecute respondent Nos.2 and 3 i.e. R.Shyam Sundar Reddy and Sriramappa in C.C.No.62/2009 on the file of the Principal Civil Judge (Junior Division) & J.M.F.C., Mulbagal for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
3. Respondent No.1 was the complainant. Respondent Nos.2 and 3 were accused Nos.1 and 2 in the said case. For the purpose of convenience, the parties will Crl.R.P.No.1018/2011 3 be referred to henceforth with their ranks before the trial Court.
4. In C.C.No.62/2009 accused Nos.1 and 2 failed to appear before the trial Court. On the trial Court issuing non-bailable warrant against the accused, accused No.2 appeared before the Court and was released on bail. However, the trial Court could not secure the presence of accused No.1. Therefore, the trial Court issued proclamation against accused No.1 invoking power under Section 82 of Cr.P.C.
5. Thereafter, the complainant filed application under Section 83 of Cr.P.C. for attachment of the property bearing Survey No.4/P1 measuring 3.00 acres of Budaderu Village, Byrakur Hobli, Mulbagal Taluk. Admittedly, the said property belonged to one C.Gurappa. As on the date of attachment warrant, in the RTC the name of C.Gurappa was appearing as owner.
6. The complainant claimed that accused No.1 is grandson of C.Gurappa, having 1/3rd share in the property. Thus sought attachment of 1/3rd share in the Crl.R.P.No.1018/2011 4 property. On filing such application, on 02.07.2011 the trial Court issued attachment warrant.
7. After such attachment, the property was brought for sale in public auction under auction notice dated 07.07.2011 issued by the Tahsildar, Mulbagal Taluk. At that stage, the petitioner filed application under Section 84 of Cr.P.C. claiming that C.Gurappa was the absolute owner of the property, she is the wife of C.Gurappa and he has bequeathed the said property in her favour under registered Will dated 22.11.2006 along with the other properties. She further claimed that by inadvertence her name was not entered in RTC to the said property and denied any interest of accused No.1 in the property.
8. The complainant opposed the said application. In his statement of objections he admitted that the petitioner was the wife of C.Gurappa. He claimed that petitioner's elder sister Changamma was also married to C.Gurappa and both of them did not get any issue. He further claimed that C.Gurappa fostered accused No.1's mother Parvathamma, got her married to Crl.R.P.No.1018/2011 5 one Reddyappa and kept him in his house as illatom son- in-law. Thus the complainant claimed that accused No.1 was the grandson of C.Gurappa and he had 1/3rd share in the said property.
9. The trial Court on hearing the complainant and the petitioner by the impugned order upheld the version of the complainant and rejected the petitioner's application. The trial Court found fault with the petitioner not getting her name entered in RTC on the basis of the Will set up by her, doubted her claim and held that she has not approached the Court with clean hands.
10. The trial Court attached the property invoking Section 83 of Cr.P.C. which falls under Chapter VI of Cr.P.C. dealing with the process to compel appearance of the witnesses/accused. The pre-requirement for issuing the attachment of the property of the absconding person is that the property shall belong to the proclaimed person/absconding person.
11. In this case, admittedly, the property belonged to C.Gurappa and not accused No.1 R.Shyam Sundar Reddy. Whenever any claim is made to attach the Crl.R.P.No.1018/2011 6 property or objections is filed to the application, the Court has to consider the said objections as per Section 84 of Cr.P.C. Section 84(1) and (3) of Cr.P.C. are relevant for the purpose of considering this revision petition.
12. Section 84(1) & (3) of Cr.P.C. read as follows:
"84. Claims and objections to attachment (1) If any claim is preferred to, or objection made to the attachment of, any property attached under Section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under Section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:
PROVIDED that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.
(2) .......................................... (3) Every such claim or objection shall be inquired into by the court in which it is preferred or made:
PROVIDED that, if it is preferred or made in the court of a Chief Judicial Magistrate, he may Crl.R.P.No.1018/2011 7 make it over for disposal to any Magistrate subordinate to him."
13. Perusal of the above provision makes it very clear that whenever the claim or objection is raised to the attachment, it is mandatory for the Court to hold inquiry into the matter to allow or disallow the application. In this case, the trial Court without holding any inquiry into the matter, only on considering the application and statement of objections, dismissed the application of the petitioner.
14. Coming to the merits, the complainant himself in his statement of objections admitted that C.Gurappa was the owner of the property and the petitioner is the surviving wife of C.Gurappa. Therefore even in the absence of will, as class-I heir she is entitled to succeed to the property. According to the complainant himself, accused No.1 was the son of fostered daughter of C.Gurappa and that fostered daughter was the niece of the petitioner.
15. Neither under Section 6 nor under Section 8 of the Hindu Succession Act, 1956 a person related to Crl.R.P.No.1018/2011 8 male Hindu through his wife from her maternal family become heir to succeed to his property. Therefore, the trial Court's finding that accused No.1 was the grandson of C.Gurappa and therefore, he was entitled to succeed to 1/3rd share in the property was glaringly erroneous and illegal. On that count also, the impugned order has no legs to stand. Therefore, the petition is allowed.
The impugned order dated 13.09.2011 passed in C.C.No.62/2009 rejecting the application of the petitioner under Section 84 of Cr.P.C. is hereby set aside.
The application of the petitioner under Section 84 of Cr.P.C. is hereby allowed. The order of the trial Court attaching the property bearing Survey No.4/P1 measuring 3.00 acres situated at Budaderu Village, Byrakur Hobli, Mulbagal Taluk is hereby withdrawn.
Sd/-
JUDGE KSR